BILL NUMBER: SB 1146	CHAPTERED  09/30/00

	CHAPTER   1077
	FILED WITH SECRETARY OF STATE   SEPTEMBER 30, 2000
	APPROVED BY GOVERNOR   SEPTEMBER 30, 2000
	PASSED THE SENATE   AUGUST 30, 2000
	PASSED THE ASSEMBLY   AUGUST 29, 2000
	AMENDED IN ASSEMBLY   AUGUST 25, 2000
	AMENDED IN ASSEMBLY   JULY 6, 2000
	AMENDED IN ASSEMBLY   JUNE 21, 2000
	AMENDED IN SENATE   JULY 14, 1999
	AMENDED IN SENATE   JUNE 24, 1999
	AMENDED IN SENATE   JUNE 21, 1999
	AMENDED IN SENATE   JUNE 14, 1999

INTRODUCED BY   Senator Burton
   (Principal coauthor: Senator Polanco)
   (Coauthors:  Senators Escutia, Haynes, and Karnette)
   (Coauthors:  Assembly Members Baugh, Cardoza, and Granlund)

                        FEBRUARY 26, 1999

   An act to amend Section 43104 of, and to add Sections 39027.3 and
43105.5 to, the Health and Safety Code, relating to air pollution.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 1146, Burton.  Motor vehicles:  pollution control devices.
   Existing law authorizes the State Air Resources Board to adopt and
implement emissions standards for new motor vehicles to control
emissions from those vehicles.
   This bill would require the state board, for all 1994 and later
model-year motor vehicles that are equipped with on board diagnostic
systems and that are certified in accordance with specified test
procedures, to adopt regulations that would require motor vehicle
manufacturers to take specified actions to make available information
relating to motor vehicle emissions monitoring and testing, and
diagnostic systems, as prescribed.  The bill would provide for the
imposition of reasonable business conditions as a condition of the
disclosure of information determined to be a trade secret, and would
authorize a court to issue a protective order concerning that
information.
   The bill would require the executive officer of the state board,
if he or she obtains credible evidence of a motor vehicle
manufacturer's failure to comply with any of the requirements imposed
by those regulations, to issue a notice to comply to the
manufacturer and would require the manufacturer to submit a
compliance plan, as specified.  The bill would require an
administrative hearing to be conducted by a hearing officer if the
manufacturer contests the notice to comply or the executive officer
rejects the compliance plan within a specified time period.  The bill
would require the motor vehicle manufacturer to correct the
violation within 30 days from the date of a specified finding by the
hearing officer or be subject to a civil penalty in an amount not to
exceed $25,000 per day per violation.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:


  SECTION 1.  The Legislature hereby finds and declares all of the
following:
   (a) There are over 26 million registered motor vehicles in
California, and those vehicles are relied upon heavily by California
residents to conduct their everyday activities.
   (b) The use of those motor vehicles results in hundreds of tons of
pollutants being emitted into California's air every day,
significantly affecting air quality and public health and safety.  To
prevent unnecessary pollution, it is in the best interests of this
state to ensure that the ability of California motorists to obtain
service, repair, or replacement of faulty emissions-related
components of their motor vehicles is not limited by the arbitrary
withholding of service, repair, or parts information by motor vehicle
manufacturers.
   (c) Recent emissions standards adopted and implemented by the
State Air Resources Board for motor vehicles manufactured after 1993
have resulted in the development by vehicle manufacturers of "on
board diagnostic computers," that interface with the many component
parts of a vehicle's emissions control system.  Essential service,
repair, and parts information and tools for interfacing with a
vehicle's on board diagnostic computer system may not be readily
available to independent automotive repair technicians and
facilities.  Accordingly, consumers may be restricted to having the
service and repair of faulty emissions-related components of a motor
vehicle performed only by franchised dealerships, and consumers may
be also forced to purchase replacement parts manufactured solely by
or on behalf of the vehicle manufacturer.  This restriction of
consumer choice and options is contrary to the history of automotive
repair, which saw the advent of independent repair technicians and
facilities and independent aftermarket parts manufacturers as healthy
market competitors to vehicle manufacturers and their dealerships.
   (d) The withholding of essential service, repair, and parts
information and tools by vehicle manufacturers from independent
automotive repair technicians and independent aftermarket parts
manufacturers may result in improper and needlessly costly repairs
that could also endanger the public and result in anticompetitive
effects harmful to the best interests of the state.
   (e) It is the intent of the Legislature in enacting this act
during the 2000 portion of the 1999-2000 Regular Session to assure
and stimulate competition in the service and repair of motor
vehicles, including emissions systems, and in the availability of
parts for those repairs.  Further, it is the important policy of this
state to encourage competition so that consumers have choices
available to them in the service, repair, and parts used in the
service or repair of motor vehicles.
  SEC. 2.  Section 39027.3 is added to the Health and Safety Code, to
read:
   39027.3.  (a) "Bidirectional control" means the capability of a
diagnostic tool to send messages on the data (bus) that temporarily
overrides the module's control over a sensor or actuator and gives
control to the diagnostic tool operator.  Bidirectional controls do
not create permanent changes to engine or component calibrations.
   (b) "Covered person" means any person engaged in the business of
service or repair of motor vehicles who is licensed or registered
with the Bureau of Automotive Repair, pursuant to Section 9884.6 of
the Business and Professions Code, to conduct that business, or who
is engaged in the manufacture or remanufacture of emissions-related
motor vehicle parts for those motor vehicles.
   (c) "Data stream information" means information that originates
within the vehicle by a module or intelligent sensors including, but
not limited to, a sensor that contains and is controlled by its own
module and transmitted between a network of modules and intelligent
sensors connected in parallel with either one or two communication
wires.  The information is broadcast over communication wires for use
by other modules such as chassis or transmissions to conduct normal
vehicle operation or for use by diagnostic tools.  Data stream
information does not include engine calibration-related information.

   (d) "Emissions-related motor vehicle information" means
information regarding any of the following:
   (1) Any original equipment system, component, or part that
controls emissions.
   (2) Any original equipment system, component, or part associated
with the powertrain system including, but not limited to, the fuel
system and ignition system.
   (3) Any original equipment system or component that is likely to
impact emissions, including, but not limited to, the transmission
system.
   (e) "Emissions-related motor vehicle part" means any direct
replacement automotive part or any automotive part certified by
executive order of the state board that may affect emissions from a
motor vehicle, including replacement parts, consolidated parts,
rebuilt parts, remanufactured parts, add-on parts, modified parts,
and specialty parts.
   (f) "Enhanced data stream information" means data stream
information that is specific for an original equipment manufacturer's
brand of tools and equipment.
   (g) "Enhanced diagnostic tool" means a diagnostic tool that is
specific to the original equipment manufacturer's vehicles.
  SEC. 3.  Section 43104 of the Health and Safety Code is amended to
read:
   43104.  For the certification of new motor vehicles or new motor
vehicle engines, the state board shall adopt, by regulation, test
procedures and any other procedures necessary to determine whether
the vehicles or engines are in compliance with the emissions
standards established pursuant to Section 43101.  The state board
shall base its test procedures on federal test procedures or on
driving patterns typical in the urban areas of California.
  SEC. 4.  Section 43105.5 is added to the Health and Safety Code, to
read:
   43105.5.  (a) For all 1994 and later model-year motor vehicles
equipped with on board diagnostic systems (OBD's) and certified in
accordance with the test procedures adopted pursuant to Section
43104, the state board, not later than January 1, 2002, shall adopt
regulations that require a motor vehicle manufacturer to do all of
the following to the extent not limited or prohibited by federal law
(the regulations adopted by the state board pursuant to this
provision may include subject matter similar to the subject matter
included in regulations adopted by the United States Environmental
Protection Agency):
   (1) Make available, within a reasonable period of time, and by
reasonable business means, including, but not limited to, use of the
Internet, as determined by the state board, to all covered persons,
the full contents of all manuals, technical service bulletins, and
training materials regarding emissions-related motor vehicle
information that is made available to their franchised dealerships.
   (2) Make available for sale to all covered persons the
manufacturer's emissions-related enhanced diagnostic tools, and make
emissions-related enhanced data stream information and bidirectional
controls related to tools available in electronic format to equipment
and tool companies.
   (3) If the motor vehicle manufacturer uses reprogrammable computer
chips in its motor vehicles, provide equipment and tool companies
with the information that is provided by the manufacturer to its
dealerships to allow those companies to incorporate into aftermarket
tools the same reprogramming capability.
   (4) Make available to all covered persons, within a reasonable
period of time, a general description of their on board diagnostic
systems (OBD II) for the 1996 and subsequent model-years, which shall
contain the information described in this paragraph.  For each
monitoring system utilized by a manufacturer that illuminates the OBD
II malfunction indicator light, the motor vehicle manufacturer shall
provide all of the following:
   (A) A general description of the operation of the monitor,
including a description of the parameter that is being monitored.
   (B) A listing of all typical OBD II diagnostic trouble codes
associated with each monitor.
   (C) A description of the typical enabling conditions for each
monitor to execute during vehicle operation, including, but not
limited to, minimum and maximum intake air and engine coolant
temperature, vehicle speed range, and time after engine startup.
   (D) A listing of each monitor sequence, execution frequency, and
typical duration.
   (E) A listing of typical malfunction thresholds for each monitor.

   (F) For OBD II parameters for specific vehicles that deviate from
the typical parameters, the OBD II description shall indicate the
deviation and provide a separate listing of the typical value for
those vehicles.
   (G) The information required by this paragraph shall not include
specific algorithms, specific software code, or specific calibration
data beyond that required to be made available through the generic
scan tool in federal and California on board diagnostic regulations.

   (5) Not utilize any access or recognition code or any type of
encryption for the purpose of preventing a vehicle owner from using
an emissions-related motor vehicle part with the exception of the
powertrain control modules, engine control modules, and transmission
control modules, that has not been manufactured by that manufacturer
or any of its original equipment suppliers.
   (6) Provide to all covered persons information regarding
initialization procedures relating to immobilizer circuits or other
lockout devices to reinitialize vehicle on board computers that
employ integral vehicle security systems if necessary to repair or
replace an emissions-related part, or if necessary for the proper
installation of vehicle on board computers that employ integral
vehicle security systems.
   (7) All information required to be provided to covered persons by
this section shall be provided, for fair, reasonable, and
nondiscriminatory compensation, in a format that is readily
accessible to all covered persons, as determined by the state board.

   (b) Any information required to be disclosed pursuant to a final
regulation adopted under this section that the motor vehicle
manufacturer demonstrates to a court, on a case-by-case basis, to be
a trade secret pursuant to the Uniform Trade Secret Act contained in
Title 5 (commencing with Section 3426) of Part 1 of Division 4 of the
Civil Code, shall be exempt from disclosure, unless the court, upon
the request of a covered person seeking disclosure of the
information, determines that the disclosure of the information is
necessary to mitigate anticompetitive effects.  In making this
determination, the court shall consider, among other things, the
practices of any motor vehicle manufacturer that results in the
fullest disclosure of information listed in paragraph (4) of
subdivision (a).  In actions subject to this subdivision, the court
shall preserve the secrecy of an alleged trade secret by reasonable
means, which may include granting a protective order in connection
with discovery proceedings, holding an in-camera hearing, sealing the
record of the action, or ordering any person involved in the
litigation not to disclose an alleged trade secret without prior
court approval.
   (c) If information is required to be disclosed by a motor vehicle
manufacturer pursuant to subdivision (b), the court shall allow for
the imposition of reasonable business conditions as a condition of
disclosure, and may include punitive sanctions for the improper
release of information that is determined to be a trade secret to a
competitor of the manufacturer.  The court shall also provide for
fair, reasonable, and nondiscrimatory compensation to the motor
vehicle manufacturer for the disclosure of information determined by
the court to be a trade secret and required to be disclosed pursuant
to subdivision (b).  The court shall provide for the dissemination of
trade secret information required to be disclosed pursuant to
subdivision (b) through licensing agreements and the collection of
reasonable licensing fees.  If the court determines that disclosure
of any of the information required to be disclosed under subdivision
(b) constitutes a taking of personal property, a jury trial shall be
held to determine the amount of compensation for that taking, unless
waived by the motor vehicle manufacturer.
   (d) The state board shall periodically conduct surveys to
determine whether the information requirements imposed by this
section are being fulfilled by actual field availability of the
information.
   (e) If the executive officer of the state board obtains credible
evidence that a motor vehicle manufacturer has failed to comply with
any of the requirements of this section or the regulations adopted by
the state board, the executive officer shall issue a notice to
comply to the manufacturer.  Not later than 30 days after issuance of
the notice to comply, the vehicle manufacturer shall submit to the
executive officer a compliance plan, unless within that 30-day period
the manufacturer requests an administrative hearing to contest the
basis or scope of the notice to comply in accordance with subdivision
(f).  The executive officer shall accept the compliance plan if it
provides adequate demonstration that the manufacturer will come into
compliance with this section and the board's implementing regulations
within 45 days following submission of the plan.  However, the
executive officer may extend the compliance period if the executive
officer determines that the violation cannot be remedied within that
period.
   (f) If the motor vehicle manufacturer contests a notice to comply
pursuant to subdivision (e) or the executive officer rejects the
compliance plan submitted by the manufacturer, an administrative
hearing shall be conducted by a hearing officer appointed by the
state board, in accordance with procedures established by the state
board.  The hearing procedures shall provide the manufacturer and any
other interested party at least 30 days notice of the hearing.  If,
after the hearing, the hearing officer appointed by the state board
finds that the motor vehicle manufacturer has failed to comply with
any of the requirements of this section or the regulations adopted by
the state board, and the manufacturer fails to correct the violation
with 30 days from the date of the finding, the hearing officer may
impose a civil penalty upon the manufacturer in an amount not to
exceed twenty-five thousand dollars ($25,000) per day per violation
until the violation is corrected, as determined in accordance with
the hearing procedures established by the state board.  The hearing
procedures may provide additional time for compliance prior to
imposing a civil penalty.  If so, the hearing officer may grant
additional time for compliance if he or she determines that the
violation cannot be remedied within 30 days of the finding that a
violation has occurred.
   (g) The state board, in consultation with the Department of
Consumer Affairs, shall, through the year 2009, report annually to
the Legislature on the extent to which the implementation of this act
enacted during the 2000 portion of the 1999-2000 Regular Session is
effective in furthering the intent and policy of this act.
   (h) Nothing in this section is intended to authorize the
infringement of intellectual property rights embodied in United
States patents, trademarks, or copyrights, to the extent those rights
may be exercised consistently with any other federal laws.
